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Thursday, 13 November 2008

Paul Dacre, editor-in-chief of Associated Newspapers, has entered the fray on the judge-made law of privacy, criticising the 'inexorable' and 'insidious' imposition of new law on the British Press. Speaking at the Society of Editors conference, he warned that the new law was "allowing the corrupt and the crooked to sleep easily in their beds" while also undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

Dacre had two key criticisms. First, the substantive contention that the law was based upon "amoral judgements". The amoral component was deemed to be the closeting of 'unconventional', perhaps depraved - certainly commercialised - sexual practices and/or of adulterous relationships behind the screen of personal privacy (protected by Article 8 ECHR). Dacre was concerned that the law appears to make no moral distinction "between marriage and those who would destroy it, between victim and victimiser, between right and wrong".

There are two points at which these comments might bite. On one hand, the law has to determine when a privacy interest is invoked. Dacre might argue that a commercial relationship with a prostitute does not engage privacy interests, and/or that any confidences purportedly entered under the 'contract' should not be enforced. Currently, the law does not agree with this approach. On the other hand, the law leaves room for the exposure of errant behaviour in circumstances where the interest in privacy is outweighed by some public interest in the matter. Here adultery committed by John Doe may remain private, whereas adultery committed by John Prescott might not. There is scope for debate, of course, on the question of quite when this public interest arises. Dacre complained that in both areas, the law is developing in an undesirable manner: that it "seems to be ruling out any such thing as public standards of morality and decency, and the right of newspapers to report on digressions from those standards".

Dacre's second criticism concerned the allocation of most media law cases to one judge: Mr Justice David Eady. He complained that "while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door". Media law, he complains has in effect become 'Eady's law' when it should reflect "the collective wisdom of many different judges over the ages".

There is a lot in this point, accepting that judgments at first instance will always be open to appeal to higher courts. When a large proportion of cases at first instance are decided by one and the same judge - whomever that might be - it becomes increasingly likely that any worldview, predilection or leaning on the part of that individual will influence the decisions made on arguments put. For Dacre, Judge Eady's perspective is marred by "an animus against the popular press and the right of people to freedom of expression". In the privacy and other media law contexts, there is plenty of room for 'political' decision-making where incommensurable social values come into conflict (1). This leaves open entirely the question of whether the actual raft of decisions that Judge Eady has delivered are correct or appropriate.

So how far does all this matter? For Dacre, hugely. He sees the obvious and direct correlation between content and sales figures, and warns at length that if stories cannot be told about the misdeeds of "the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy" then the Press cannot be a sustainable commercial enterprise. In short, we need the Press and the Press needs to be free to tell these stories. He cites eminent judges in support of this view. It is a powerful warning.

There is obviously the risk that Dacre's comments will be rejected on the simplistic 'you would say that wouldn't you' basis. He is open to the critique that he simply doesn't like what the law prescribes. Perhaps unfortunately, Dacre's speech came close to personalising the issue with its direct references to the purported failings of Judge David Eady. He described the judge as "arrogant", and as possessing a "dessicated" and "highly relativist" moral sense. On this, Dacre implicitly gets his defence in first. He would contend that the personalised story is much more appealing than the "ponderous, prolix and achingly dull". Who wouldn't agree - and on this ground, for this post, apologies!

This is an important speech. It raises questions over (a) the allocation of cases in the High Court, and (b) the appropriateness of asking judges alone to determine how the framework within which journalists operate should be fashioned. The irony of course, is that after decades of warding off legislative oversight, newspaper executives seem now to be making a plea for Parliamentary intervention.

AsideThe speech also touched briefly on freedom of information, open justice, data protection restrictions on journalists' investigations, and conditional fee arrangements (CFAs) and their impact on newspapers' willingness to fight actions and perhaps to publish (here he cited a recent case lost by the Mail on Sunday in which Associated’s costs bill was £520,000 costs in a case that awarded damages of just £5,000 in a dispute over a simple matter of fact - Dacre also indicated that the ministry of Justice is set to unveil proposals to reform CFAs, including capping lawyers’ fees).

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